Will Contests

B.B. King, a music legend – Undue Influence and Capacity in real life

June 24, 2016 | by Chepenik Trushin LLP

B.B. King Estate Fight: One Year Later and No End in Sight

Legendary blues musician B.B. King passed away on May 14, 2015 due to congestive heart failure at the age of 89. In a will created in 2007, King named his longtime business manager, Laverne Toney, as the executor/personal representative of his will. The 2007 will, thus, puts Toney solely in charge of administering King’s assets, his property, and his trust. In June 2015, a Las Vegas judge confirmed Toney’s appointment as sole executor, and rejected efforts to contest the will made by four of Mr. King’s children.

Although B.B. King did not have children from either of his two marriages, he nevertheless claimed to have 15 children with 15 different women over the course of his lifetime. Confusing the situation still further, King’s doctors determined in the 1980’s that due to King’s low sperm count, he was not able to conceive children. However, King never disputed paternity, and claimed to be the father of all 15 children, 11 of whom are still alive and have been fighting Toney over the estate.

Personal representative designation in Last Will and Testament – Convicted Felons

June 20, 2016 | by Chepenik Trushin LLP

Florida Limitation on Convicted Felons Serving as Personal Representatives in Probate Administration

When contemplating preparing a last will and testament, there are many options that have to be considered before drafting can begin. One important consideration is deciding who to nominate as the personal representative of your estate.

A personal representative is a fiduciary who is appointed by the court to administer the decedent’s estate.. Depending on the jurisdiction, a personal representative may also be known or referred to as an executor, administrator, or other name. Florida Statute § 733.301 outlines who has preference in appointment as the personal representative in various scenarios. When the decedent dies testate, meaning with a last will and testament, preference is given to the personal representative nominated in the will. If the nominated personal representative is unwilling, unable or unfit to serve, any successor nominated in the will has preference. In the event all nominated personal representatives are unwilling, unable or unfit to serve, preference goes to the person selected by a majority in interest of the persons entitled to the estate. If there is no person selected by a majority, preference goes to a beneficiary under the will, and if more than one beneficiary applies, the court may select the person best qualified.

Adult Adoptions as an Estate Planning Tool

May 20, 2016 | by Chepenik Trushin LLP

Many people utilize a will, a trust, or some other standard form of estate planning to ensure that their loved ones are provided for upon their death. However, in Florida, individuals have an additional estate planning tool: adult adoptions. Under Florida Statute § 63.042, a husband and wife, an unmarried adult, or a married person without the other spouse joining as a petitioner may adopt an adult. The statute does provide certain limitations, for example, if a married person wants to adopt without the other spouse joining as a petitioner, then the non-joining spouse must consent to the adoption. However, a court can excuse this requirement. Generally, Florida’s adoption statute is less restrictive than similar statutes in other states because it does not impose the common age difference requirement. Under this requirement, there must be a certain age difference between the party being adopted and the party wishing to adopt in order for the adoption to be legal. This means that in Florida an adult is able to adopt another adult regardless of age.

How Can I Challenge a Will in Florida?

September 10, 2015 | by Chepenik Trushin LLP

A will is supposed to represent your loved one’s final decree for the distribution of his or her estate, but what can you do if you believe that there is a possibility that the will does not accurately represent the decedent’s last wishes? Especially with high-net-worth decedents, there are sometimes valid concerns of fraud or other grounds for contesting a will.

In Florida, an individual can challenge a will before the conclusion of the probate of the decedent’s estate. Probate is the process of submitting a will and any related documents to a specialized court, which assigns authority to a personal representative for the purpose of settling and distributing the estate using letters of administration. The probate court also determines the validity of the will.

Removing a Personal Representative in Florida

January 12, 2015 | by Chepenik Trushin LLP

When a Florida resident passes away, regardless of whether he or she had a valid will, a person will be appointed to act as personal representative to administer the estate of the deceased. If the deceased executed a valid will, he or she may have named the personal representative in the will, or if the personal representative was not specifically named, the power of appointing the personal representative may have been granted to a named individual. See Fla. Stat. § 733.301(1)(a)(1). If the deceased either died without a will, or had a will but neither named a personal representative, nor granted the power to appoint a personal representative, then the personal representative is appointed in accordance with the order of preference set forth in Florida Statute § 733.301. See Fla. Stat. § 733.301(1). For a person who dies without a will, the personal representative will be “[t]he surviving spouse,” “[t]he person selected by a majority in interest of the heirs,” or “[t]he heir nearest in degree. If more than one applies, the court may select the one best qualified.” See Fla. Stat. § 733.301(1)(b). For a person who died with a will which did not specify a personal representative or grant someone else the power to name the personal representative, the personal representative will be “[t]he person selected by a majority in interest of the persons entitled to the estate,” or “[a] devisee under the will. If more than one devisee applies, the court may select the one best qualified.” See Fla. Stat. § 733.301(1)(a).
Continue Reading

Do You Have a Claim for Tortious Interference With an Expected Inheritance?

August 19, 2014 | by Chepenik Trushin LLP

Tortious interference with an expected inheritance occurs when someone intentionally prevents, through fraud, duress, or other tortious means, another person from receiving an inheritance or gift that other person otherwise would have received. Many states today, including Florida, recognize the tort of tortious interference with an expected inheritance. Even the Supreme Court of the United States has acknowledged tortious interference with an expected inheritance to be a “widely recognized tort.”
Continue Reading

CONTESTING A WILL

July 7, 2014 | by Chepenik Trushin LLP

Often times, people are displeased by the terms of a family member’s will and would like to have a court set aside the will. This frequently occurs when relatives are left out of a will, and there is concern that the will does not reflect the actual wishes of the decedent. Based on the circumstances in which a will is created or the consistency of a will under applicable state law, some wills may be invalidated. According to Julie Garber’s recent article, “What Are the Grounds for Contesting a Will?” there are four legal grounds on which a party may contest the validity of a will: (1) non-compliance with signing formalities, (2) lack of testamentary capacity, (3) undue influence, and (4) fraud.
Continue Reading

Insuring Your Final Wishes Through Proper Estate Planning

June 29, 2014 | by Chepenik Trushin LLP

The consequences of will disputes range from the goals of the individual who created the will being greatly frustrated to failing completely, which is a shame because a will represents a person taking the time and energy to memorialize his or her last wishes in a testamentary instrument. However, poor estate planning combined with contentious litigation among family members can foil the best intentions of a testator.
Continue Reading

The Blind Side: Former South Carolina Gamecock Coach’s Children Claim Undue Influence in Probate

April 3, 2014 | by Chepenik Trushin LLP

SEC football is known for its national championships, sensational athletes, and jaw-dropping hits. With this in mind, it is no surprise that the children of Jim Carlen, former coach of the South Carolina Gamecocks, are fighting back after being blindsided by the probate of a will that left them nothing. In a petition filed in probate court, his three children have alleged that Carlen’s second wife, Meredith, exercised undue influence over Carlen in the final years of his life and, as a result, his will is invalid.
Continue Reading

Switched at Execution: Don’t Let It Happen to You

March 27, 2014 | by Chepenik Trushin LLP

The execution of one’s final will and testament is something to be taken very seriously. The permanent and inevitable nature of death means that attention to detail is paramount to ensuring your final wishes are fully set forth, and that your loved ones have a clear roadmap to carrying out those wishes. Sadly, the consequences of a flawed execution can undermine your will altogether, as Florida courts require strict compliance with the applicable state statutes in order for a will to be valid and effective in Florida. Allen v. Dalk, 826 So. 2d 245, 247 (Fla. 2002). One issue that occurs with sufficient frequency to be a staple of law school textbooks and the subject of numerous expensive legal battles is a situation involving a “signature swap” during the execution of a will.
Continue Reading